DE,PARTMENT OF THE NbVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVYANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 5143-03
19 August 2003
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
RECORD OF 0 -.
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 wlattachments
(2) Case Summary
(3) Subjectts naval record
1. Pursuant to the provisions of reference (a), Petitioner, a
former enlisted member of the Navy, filed enclosure (1) with this
Board requesting, in effect, that her naval record be corrected
by changing the RE-4 reenlistment code assigned on 5 April 2001.
2. The Board, consisting of Mr. Caron, Ms. Schnittman, and Mr.
Washington, reviewed Petitioner's allegations of error and
' injustice on 30 July 2003 and, pursuant to its regulations,
' determined that the corrective action indicated below should be
kaken on the available evidence of record. Documentary material
considered by-the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice finds as
follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
c. On 12 February 2001 a grand jury charged Petitioner with
robbery and a warrant was issued for her arrest. However, the
record fails to reflect that she was arrested, or that she knew
of the indictment. On 28 February 2001 she enlisted in the Wavy
after stating, in an application for a security clearance, that
she had never been charged with a felony and there were no
charges pending against her.
d. On 5 April 2001 the commanding officer directed
Petitioner's separation based on concealment of preservice civil
involvement. On that same date, she was separated with an entry
level separation by reason of misconduct due to fraudulent
enlistment. At that time, she was assigned a reenlistment code
of RE-4.
e. With her application, Petitioner has submitted a letter
from the Senior Assistant Commonwealth's Attorney of Virginia
that states, in effect, that Petitioner was not prosecuted for
robbery, but was very helpful in assisting his office in
uncovering the facts in the robbery case. In her application,
Petitioner claims that she knew nothing about the grand jury
charge and was innocent.
f. An individual may be separated by reason of fraudulent
enlistment if there is a false representation or deliberate
concealment of a disqualifying factor. An RE-4 reenlistment code
is required under such circumstances. An individual may be
separated due to erroneous enlistment if the enlistment would not
have occurred if the relevant facts had been known, but there was
no fraudulent conduct on the individual's part. Applicable
directives authorize the assignment of either an RE-3E or RE-4
reenlistment code to an individual separated for erroneous
enlistment.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action. In this regard, the Board believes Petitioner when she
states that she knew nothing about the grand jury charge, and
notes the letter from the Commonwealth's Attorney basically
confirms her version of events. Therefore, the Board concludes
that erroneous enlistment should be the reason for discharge.
Accordingly, the Board recommends that Petitioner's reason for
separation be changed to erroneous enlistment vice misconduct due
to fraudulent enlistment.
The Board also concludes that the reenlistment code of RE-3E
should be assigned since there is no evidence that Petitioner had
any performance problems or disciplinary infractions during her
brief period of service and her record does not otherwise support
the more stigmatizing code of RE-4.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that on
5 April 2001 she received an entry level separation by reason of
erroneous enlistment and an RE-3E reenlistment code, vice the
reason for separation and reenlistment code actually assigned on
that date.
b. That a copy of this Report of Proceedings be filed in
Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.
ROBERT D. ZSALMAN
Recorder
ALAN E. GOLDSMIT
Acting Recorder
5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.
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